A licensee of several full power and Class A TV stations in Florida and South Carolina paid $90,000 to resolve an FCC investigation into violations of the Children’s Television Act (CTA) threatening to hold up its stations’ license renewal grants.

The CTA, as implemented by Section 73.671 of the FCC’s Rules, requires full power TV licensees to provide sufficient programming designed to serve the educational and informational needs of children, known as “Core programming”, and Section 73.6026 extends this requirement to Class A licensees. The FCC’s license renewal application processing guideline directs Media Bureau staff to approve the CTA portion of any license renewal application where the licensee shows that it has aired an average of 3 hours per week of Core programming. Staff can also approve the CTA portion of a license renewal application where the licensee demonstrates that it has aired a package of different types of educational and informational programming, that, even if less than 3 hours of Core programming per week, shows a level of commitment to educating and informing children equivalent to airing 3 hours per week of Core programming. Applications that do not satisfy the processing guidelines are referred to the full Commission, where the licensee will have a chance to prove its compliance with the CTA.

Among the seven criteria the FCC has established for evaluating whether a program qualifies as Core programming is the requirement that the program be a regularly scheduled program. The FCC has explained that regularly scheduled programming reinforces lessons from episode to episode and “can develop a theme which enhances the impact of the educational and informational message.” With this goal in mind, the FCC has stressed that the CTA intends for regularly scheduled programming to be comprised of different episodes of the same program, not repeats of a single-episode special.

Applying this criteria to each of the licensee’s 2012 and 2013 license renewal applications, the FCC staff questioned whether certain programming listed in the Children’s Television Programming Reports for the stations complied with the episodic program requirement. In particular, the staff looked at single-episode specials that the licensee counted repeatedly for the purpose of demonstrating the number of Core programs aired during each quarter—for example, the licensee listed one single-episode special as being aired 39 times in one quarter. After determining that it could not clear the renewal applications under the FCC’s processing guidelines, the staff referred the matter to the full Commission for review.

The FCC and the licensee subsequently negotiated the terms of a consent decree to resolve the CTA issues raised by the Media Bureau. Under the terms of the consent decree, the licensee agreed to make a $90,000 voluntary contribution to the U.S. Treasury. The licensee also agreed to enact a plan to ensure future compliance with the CTA, to be reflected in each station’s Quarterly Children’s Television Programming Reports. In light of the consent decree and after reviewing the record, the FCC concluded that the licensee had the basic qualifications to be an FCC licensee and ultimately granted each station’s license renewal application.

FCC Clarifies “Red Light” Policy Is a Barrier to Grants, Not a Road Block to Filing Requests

An Indiana radio licensee faces a $15,000 fine for failing to retain all required documentation in its station’s public inspection file and for suspending operation of the station without receiving special temporary authority (STA) to do so.

We’ve all heard the warning: once you put something on the Internet, it will be there forever. But an Oregon TV station learned the hard way that records in the FCC’s online public inspection file are easier to delete than you might like—and backdating restored files is not an option.

As detailed in our May Enforcement Monitor, the FCC hit the licensee with a proposed $9,000 fine for failing to timely upload Quarterly Issues/Programs Lists to the station’s online public inspection file—$3,000 for failing to post newly-created documents to the online file after the online file rule went into effect on August 2, 2012, $3,000 for failing to meet the February 4, 2013 deadline to populate the online public file with documents created before August 2012, and yet another $3,000 for failing to disclose these apparent violations in the station’s license renewal application.

But in its response to the FCC’s Notice of Apparent Violation (NAL), the licensee asserted that it had in fact timely posted its issues/programs lists to the online public file. The licensee claimed that when it was notified that the license renewal of a co-owned LPTV station was granted, a station employee deleted all issues/programs lists for the preceding license term from the online public file of the licensee’s full power TV station, apparently confused about which station’s license renewal had been granted (both stations had the same four-letter call sign). Recognizing the error, station employees promptly re-uploaded the lists to the public file less than 24 hours later. The February 13, 2015 upload date, however, created the appearance that the licensee had missed the original due dates by more than two years.

As proof of the mishap, the licensee provided (i) a signed declaration under penalty of perjury from a station employee, and (ii) internal correspondence showing that the lists were inadvertently deleted following the LPTV station’s license renewal grant. Satisfied with this evidence, the FCC rescinded the NAL and canceled the $9,000 fine.

So let this be a teachable moment—particularly as the FCC ponders expanding its online public file requirement to radio stations.

First, when intentionally deleting documents as no longer relevant, make sure you are in the right public file. Second, where a public file document is accidentally deleted, repost it as soon as the error is spotted. Third, when you do repost it, attach a brief explanation alerting the FCC (and any potential license renewal petitioners) of the original filing date and the reason for the subsequent “late” filing. Finally, maintain contemporaneous records to document the mistake, providing evidence that will back up the station’s explanation when the FCC comes knocking.

Oh, and one last thing the FCC didn’t mention in its decision: don’t delete those public file documents until grant of the station’s license renewal becomes a final, unappealable order. If the FCC rescinds a station’s license renewal as having been granted in error, the station will need to have those documents in its public file, and the FCC isn’t going to bother looking for them in the Google cache.

A New York noncommercial educational radio station received an $8,000 fine after repeatedly failing to operate its station in accordance with its authorization. Section 301 of the Communications Act prohibits the use or operation of any apparatus for the transmission of communications or signals by radio, except in accordance with the Act and with a license granted by the FCC. In addition, Section 73.1350(a) of the FCC’s Rules requires a licensee to maintain and operate its broadcast station in accordance with the terms of the station authorization.

In response to a complaint, an FCC agent discovered in October of 2012 that the licensee was operating the station from a transmitter site in Buffalo, New York, a location about 36 miles from the authorized site. The FCC made repeated attempts to contact the licensee. Ultimately, the president of the licensee confirmed the unauthorized operation and agreed to cease operating from Buffalo. The FCC then issued a Notice of Unlicensed Operation to the licensee, warning it that future unauthorized operations could result in monetary penalties.

After receiving another complaint, the FCC determined that the licensee had resumed unauthorized operation in November of 2012. In response, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability (NAL) proposing an $8,000 fine. The FCC explained in the NAL that although the base fine for operating at an unauthorized location is $4,000, the egregiousness of the licensee’s violation warranted an upward adjustment of an additional $4,000. The FCC based this decision on the fact that the licensee had moved the location of its transmitter to a significantly more populous area more than 30 miles from its authorized location in an effort to increase the station’s audience while potentially causing economic or competitive harm to radio stations licensed to that community.

Following the NAL, the licensee sought a reduction or cancellation of the fine, claiming that it made good faith efforts to remedy the violation, had a history of compliance with the FCC’s Rules, and was unable to pay the fine. The FCC concluded that the licensee took no remedial actions until after it was notified of the violation, and found that the licensee’s continued operation from the unauthorized location after receiving a Notice of Unlicensed Operation demonstrated a deliberate disregard for the FCC’s Rules. Finally, the licensee failed to provide any documentation supporting its inability to pay claim. Accordingly, the FCC rejected the licensee’s arguments and declined to cancel or reduce the $8,000 fine.

In October of 2014, the FCC’s Video Division proposed a $16,000 fine against the licensee of a Class A TV station for violating (i) Section 73.3539(a) of the FCC’s Rules by failing to timely file its license renewal application, (ii) Section 73.3526(11)(iii) for failing to timely file its Children’s Television Programming Reports for eight quarters, (iii) Section 73.3514(a) for failing to report those late filings in its license renewal application, and (iv) Section 73.3615(a) for failing to timely file its 2011 biennial ownership report. The FCC also noted a violation of Section 301 of the Communications Act because the station continued operating after its authorization expired. Continue reading →

The FCC has slowly but surely been striving to improve the nation’s Emergency Alert System (“EAS”) to improve safety warnings to the public. In its most recent effort to achieve this goal, the FCC issued an Order last week updating its rules to establish operational standards to be used during national EAS tests and emergencies. According to the FCC, the release of the Order is meant to “help facilitate the use of EAS in a way that maximizes its overall effectiveness as a public warning and alert system.” The FCC’s rule changes were made in part to respond to problems that occurred during the first nationwide EAS test, which took place in November of 2011.

The FCC’s actions should come as no surprise to those following our reporting on EAS both before and after the first nationwide test. As a refresher, in the Commission’s 2013 EAS Report Strengthening the Emergency Alert System (EAS): Lessons Learned from the Nationwide EAS Test, the FCC concluded that a number of technical changes could be made to improve EAS and the national alerting system. Among other things, the first nationwide EAS test revealed that many encoders/decoders did not receive or transmit the test because the “location code” sent was “Washington, DC”, which those encoders/decoders did not recognize as being relevant to their local area.

To address this error, the FCC will require EAS participants to be able to receive and process a national location code. Specifically, the Commission has adopted “six zeroes” (000000) as the national location code pertaining to every state and county in the U.S. in order to make EAS consistent with Common Alerting Protocol (“CAP”) standards. This requirement will kick in one yearfrom the effective date of the new rules (the effective date is thirty days after the Order is published in the Federal Register). EAS Participants should be aware that the change to the “six zeroes” national code could make some older “legacy” EAS equipment obsolete, or require that existing EAS equipment software be updated.

The Order also adopted a new rule regarding the use of a National Periodic Test (“NPT”) event code for future EAS testing, which is designed to bring consistency to the operation of EAS equipment in future national, regional, state, and local activations. The FCC determined that using the NPT for national tests would be a less burdensome alternative to using the Emergency Alert Notification (“EAN”) code. This is because the EAN has characteristics that are different than standard event codes, which include having maximum authority to supersede any other live alert or event as well as having no definitive duration. In contrast, the NPT is treated just like other codes, has a duration of two minutes, is already included in Part 11 of the FCC’s Rules, and is therefore already programmed into most EAS equipment. Just like the “six zeroes” for the national location code, all EAS receivers will need to be able to receive the NPT code within one year from the effective date of the new rules.

The FCC is also creating a new and permanent “Electronic Test Reporting System” (“ETRS”) and is mandating that all EAS Participants use the ETRS to electronically file test results with the FCC immediately following any nationwide EAS test. As many filers may recall, a number of problems occurred with the previous electronic filing system, including not providing filers with confirmation of having filed, and not allowing any updates or corrections to a report after it has been filed. These glitches will hopefully be corrected, and the FCC believes that data retrieved from its new ETRS will be usable to create a planned “FCC Mapbook” database that organizes stations and cable systems by their state, EAS Local Area, and EAS designation. EAS Participants are required to complete the identifying information initially required by the ETRS within sixty days of the effective date of the new ETRS rules, or within sixty days of the launch of the ETRS, whichever is later.

Lastly, the FCC is requiring EAS Participants to comply with minimum accessibility rules to ensure that EAS visual messages are accessible to all members of the public, including those with disabilities. The Order discussed and adopted new requirements for the following three operational areas in particular: (1) display legibility; (2) completeness; and (3) placement. Regarding display legibility, the FCC amended its rules to require that displays be “in a size, color, contrast, location, and speed that is readily readable and understandable.” For completeness, the FCC amended its rules to require that the EAS visual message “be displayed in its entirety at least once during any EAS alert message.” Finally, for placement, the FCC reiterated its requirement that the EAS visual message “be displayed at the top of the television screen or where it will not interfere with other video messages,” and amended its rules to require that the visual message not “(1) contain overlapping lines of EAS text or (2) extend beyond the viewable display except for crawls that intentionally scroll on and off of the screen.” These new requirements will go into effect six months after their effective date, which is thirty days after their publication in the Federal Register.

Some of these deadlines may seem far in the future, but it is important that EAS Participants be certain that they are capable of processing the NPT and six zeroes location code sooner rather than later. Those unwilling to heed this advice should be aware that the Order specifically states that the Media Bureau will work closely with the Enforcement Bureau to ensure that the new national test rules are strictly followed. In other words, parties that failed to adequately perform (or even participate in) the last national EAS test can expect the FCC to be much sterner the next time around.

FCC Ramps up Enforcement of Online Public File Rule with $9,000 Fine and Multiple Admonishments

This month, the FCC proposed a $9,000 fine against one TV station licensee and admonished two others for violating the online public file rule. TV stations were required to upload new public file documents to the online public file on a going-forward basis beginning August 2, 2012, and should have finished uploading existing public file documents (with certain exceptions) by February 4, 2013. Until now, the FCC had taken relatively few enforcement actions against licensees for public file documents that exist but haven’t been uploaded to the station’s online public file, making three cases in one month stand out.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires that every commercial TV licensee place in its public file, on a quarterly basis, an Issues/Programs List that details programs that have provided the station’s most significant treatment of community issues during the preceding quarter. Section 73.3526(b)(2), which the FCC modified in 2012, requires TV station licensees to upload these and most other public file documents to the FCC-hosted online public file website.

On October 1, 2014, an Oregon TV licensee filed its license renewal application. An FCC staff inspection revealed that the licensee failed to upload to the online public file copies of its Issues/Programs Lists for its entire license term. The FCC concluded that the licensee missed both the August 2, 2012 and the February 4, 2013 deadlines by over two years, resulting in two separate violations. Additionally, the licensee did not disclose the online file violations in its license renewal application, creating an additional violation of the FCC’s Rules. Each violation cost the station $3,000, for a total proposed fine of $9,000.

Also this month, a Honolulu licensee and a different Oregon licensee caught the FCC’s attention for online public file violations. The FCC proposed fines of $9,000 and $3,000 respectively against the stations for failing to timely file all of their Children’s Television Programming Reports. In addition, the FCC admonished both licensees for failing to timely upload electronic copies of their quarterly Issues/Programs Lists by the February 4, 2013 deadline. The FCC determined that while the licensees uploaded the documents approximately 18-19 months late, they were at least uploaded prior to the filing of each station’s license renewal application. Because this preserved the public’s ability to undertake a full review of the stations’ public file documents in connection with potentially filing a petition to deny, the FCC concluded that admonitions rather than additional fines were an appropriate response.

FCC Continues Crack Down on Cramming Violations With Two Multi-Million Dollar Settlements

The FCC announced this month that, in coordination with the Consumer Financial Protection Bureau and the attorneys general of all 50 states and D.C., it has reached settlements with two large wireless carriers to resolve allegations that the companies charged customers for unauthorized third-party products and services, a practice known as “cramming.” Investigations revealed that the companies had included charges ranging from $0.99 to $14.00 per month for unauthorized third-party Premium Short Message Services (“PSMS”) on their customers’ telephone bills, and that the companies retained approximately 30-35% of the revenues for each PSMS charge they billed. Continue reading →

The FCC has released a Notice of Proposed Rulemaking, Report and Order, and Order (really, that’s the title of it) (“NPRM/R&O”) proposing regulatory fees for Fiscal Year 2015 and making other changes to its regulatory fee structure. Comments on the FCC’s proposals are due June 22, 2015, with reply comments due July 6, 2015.

For the fourth consecutive year, the FCC proposed $339,844,000 in regulatory fee payments. The proposed fee tables are attached to the NPRM/R&O as Appendix C and can be used to estimate your likely 2015 regulatory fee burden. Note that effective this year, regulatory fees on Broadcast Auxiliary licenses and Satellite TV construction permits have been eliminated from the fee schedule.

In the NPRM, the FCC requested comment on whether the apportionment of regulatory fees between TV and radio broadcasters should be changed, noting that it expects to collect approximately $28.4 million from radio broadcasters and $23.6 million from TV broadcasters, but that commercial radio stations outnumber commercial TV stations by 10,226 to 4,754. Because the FCC generally allocates regulatory fees based upon the number of FCC employees employed in regulating a particular service, the FCC appears to be suggesting that radio broadcasters may have to shoulder a larger share of the broadcast regulatory fee burden

The FCC also noted that while TV regulatory fees are based upon the size of the DMA in which the TV station is located, radio fees are based upon the population actually served and the class of the station. The NPRM seeks comment on whether changes should be made to this structure, but indicated that any changes made would be unlikely to impact fees this year.

In addition, the FCC requested comment on a petition filed by the Puerto Rico Broadcasters Association requesting regulatory fee relief for broadcasters in Puerto Rico due to economic hardships and population declines specific to Puerto Rico.

Finally, the FCC adopted some changes to its regulatory fee structure. The most significant of these is a new regulatory fee, proposed to be set at $0.12 per subscriber annually, imposed upon direct broadcast satellite (“DBS”) providers (i.e., DISH and DIRECTV). The FCC pointed out that while DBS providers historically have paid regulatory fees with respect to regulation by the International Bureau, they have not paid fees with respect to the Media Bureau which also regulates the service. The payment of fees by DBS providers to recover costs associated with Media Bureau regulation of DBS was teed up in a notice of proposed rulemaking last year and was adopted in the NPRM/R&O.

After comments and reply comments are received, the FCC will release an order setting forth the final 2015 regulatory fee amounts. This order is usually released in August but sometimes isn’t available until September. The order will also establish the precise filing window for submitting regulatory fees, which is typically in the latter part of September.

Those wishing to oppose the proposed regulatory fee changes will need to file their comments and reply comments with the FCC by the respective June 22, 2015 and July 6, 2015 deadlines.

This Broadcast Station Advisory is directed to radio and television stations in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

June 1, 2015 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by June 1, 2015.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program. Continue reading →

The FCC announced this afternoon that it has reached an agreement with iHeartCommunications resolving “an investigation into the misuse of the Emergency Alert System (EAS) tones….” As we’ve noted before on numerous occasions, the federal government is very touchy about the use of an EAS alerting tone when there isn’t a test or actual emergency.

There are principally two reasons for this. First, as the FCC noted (again) in today’s Public Notice, quoting Travis LeBlanc, Chief of the Enforcement Bureau, “[t]he public counts on EAS tones to alert them to real emergencies…. Misuse of the emergency alert system jeopardizes the nation’s public safety, falsely alarms the public, and undermines confidence in the emergency alert system.”

Unfortunately, that creates certain problems, one of which is that there is no human to intercede when an EAS warning of a zombie apocalypse occurs and there are no actual brain-eating creatures in the area (don’t laugh, this has actually happened already). It is the electronic equivalent of Winston Churchill’s statement that “a lie gets halfway around the world before the truth has a chance to get its pants on.”

Compounding the harm is that while the originating station knows that the alert is false, and can so inform public safety personnel and the public itself when contacted about it, stations further down the automated distribution chain know only that they received and redistributed an EAS alert. They have no knowledge of the facts surrounding the alert itself, potentially leading to a longer period of public panic before the EAS system locates its pants.

For reasons that are hard to discern, other than perhaps that the public has become more aware of EAS (resulting in more attention from advertisers and programmers seeking to leverage that familiarity), there has been a significant uptick in false EAS alerts in the past five years. The result has been a growing number of FCC fines in amounts that previously only appeared in indecency cases. Today’s Public Notice indicates that the FCC has “taken five enforcement actions totaling nearly $2.5 million for misuse of EAS tones by broadcasters and cable networks” in the past six months.

In today’s case (the Order for which has now been released), the FCC stated that “WSIX-FM, in Nashville, Tennessee, aired a false emergency alert during the broadcast of the nationally-syndicated The Bobby Bones Show.” Delving into the details, the FCC noted that:

While commenting on an EAS test that aired during the 2014 World Series, Bobby Bones, the show’s host, broadcast an EAS tone from a recording of an earlier nationwide EAS test. This false emergency alert was sent to more than 70 affiliated stations airing “The Bobby Bones Show” and resulted in some of these stations retransmitting the tones, setting off a multi-state cascade of false EAS alerts on radios and televisions in multiple states.

The FCC indicated that the station has formally admitted to a violation of the FCC’s EAS rules, and has agreed to (1) pay a $1,000,000 civil penalty, (2) implement a three-year compliance plan, and (3) “remove or delete all simulated or actual EAS tones from the company’s audio production libraries.”

While the size of the financial penalty is certainly noteworthy, the real first in this particular proceeding is the FCC’s effort to eradicate copies of EAS tones before they can be used by future production staffs. Given the easy access to numerous recordings of EAS tones on the Internet, the FCC might be a bit optimistic that deleting the tone from a station’s production library will prevent a recurrence. However, it is perhaps an acknowledgement that most false EAS tone violations are the result of employees unaware of the FCC’s prohibition rather than a producer bent on violating the rule. It is also an acknowledgement that even a multi-year compliance program may not solve the problem if an EAS tone is lurking in the station library, seductively tempting and teasing that ambitious new staffer who just got a great idea for a funny radio bit….

Fire in the Hole: FCC Proposes $20,000 Fine Against Pirate Radio Operator

This month, the FCC proposed a fine of $20,000 against an individual in Queens, NY for operating a pirate FM radio station. Section 301 of the Communications Act prohibits the unlicensed use or operation of any apparatus for the transmission of communications or signals by radio. Pirate radio operations can interfere with and pose illegal competitive harm to licensed broadcasters, and impede the FCC’s ability to manage radio spectrum.

The FCC sent several warning shots across the bow of the operator, noting that pirate radio broadcasts are illegal. None, however, deterred the individual from continuing to operate his unlicensed station. On May 29, 2014, agents from the Enforcement Bureau’s New York Office responded to complaints of unauthorized operations and traced the source of radio transmissions to an apartment building in Queens. The agents spoke with the landlord, who identified the man that set the equipment up in the building’s basement. According to FCC records, no authorization had been issued to the man, or anyone else, to operate an FM broadcast station at or near the building. After the man admitted that he owned and installed the equipment, the agents issued a Notice of Unlicensed Operation and verbally warned him to cease operations or face significant fines. The man did not respond to the notice.

Not long after, on January 13, 2015, New York agents responded to additional complaints of unlicensed operations on the same frequency and traced the source of the transmissions to another multi-family dwelling in Queens. The agents heard the station playing advertisements and identifying itself with the same name the man had used during his previous unlicensed operations. Again, the agents issued a Notice of Unlicensed Operation and ordered the man to cease operations, and again he did not respond.

The FCC therefore concluded it had sufficient evidence that the man willfully and repeatedly violated Section 301 of the Communications Act, and that his unauthorized operation of a pirate FM station warranted a significant fine. The FCC’s Rules establish a base fine of $10,000 for unlicensed operation of a radio station, but because the man had ignored multiple warnings, the FCC doubled the base amount, resulting in a proposed fine of $20,000.

A California TV licensee received a $3,000 fine this month for failing to properly identify children’s programming with an “E/I” symbol on the screen. The Children’s Television Act (“CTA”) requires TV licensees to offer programming that meets the educational and informational needs of children, known as “Core Programming.” Section 73.671 of the FCC’s Rules requires licensees to satisfy certain criteria to demonstrate compliance with the CTA; for example, broadcasters are required to provide specific information to the public about the children’s programming they air, such as displaying the “E/I” symbol to identify Core Programing. Continue reading →

It was once a tradition that the FCC would release a pro-broadcaster rulemaking decision on the eve of the NAB Show to ensure a warm reception when the commissioners and staff arrived to speak at the Show. I say it “once” was a tradition because pro-broadcaster rulemakings are none too common these days, a point alluded to by Chairman Wheeler at the Show when he said “Now, I’ve heard and read how some believe the Federal Communications Commission has been ignoring broadcasting in favor of shiny new baubles such as the Internet.”

Still, it was in the spirit of that tradition that the Chairman posted a blog titled “Let’s Move on Updating the AM Radio Rules” two days before his NAB speech. In it, he stated his intent to call for a vote in the AM Revitalization proceeding, which then-acting-Chairman Clyburn launched at a different NAB convention in September of 2013.

The post was unavoidably sparse on details given its short length, but one detail leapt out at radio broadcasters. While signaling movement on smaller issues (“the proposed Order would give stations more flexibility in choosing site locations, complying with local zoning requirements, obtaining power increases, and incorporating energy-efficient technologies”), the post rejected what the industry sees as the real answer to revitalizing AM radio—opening a filing window for applicants seeking to build translators to rebroadcast AM radio stations on the FM band (a “translator” in the truest sense of the word).

Many see this as the most practical and consequential option since it would allow AM daytimer stations to serve their audiences around the clock, while overcoming many of AM radio’s worst obstacles—interference from appliances and electronics, as well as other AM stations, and AM’s limited sound quality. Most importantly, unlike a number of other potential solutions, FM translators avoid the need for everyone to buy a new radio in order to make the solution viable.

In his blog post, the Chairman gave two reasons for this surprising development. First, he questioned “whether there is an insufficient number of FM translator licenses available for AM licensees.” Second, he raised qualms about opening a window for only AM licensees, stating that “the government shouldn’t favor one class of licensees with an exclusive spectrum opportunity unavailable to others just because the company owns a license in the AM band.”

The first reason is, quite simply, factually unsupported by the proceeding record. In comments and reply comments filed just a year ago, the call for an FM translator filing window was deafening. It’s hard to believe the need for such translators has dramatically plummeted in just a year, or that the call for a window would have been so loud were there truckloads of FM translators already out there (in the right location) just waiting to be purchased. For anyone thinking that AM stations just want a “free” translator rather than buying one, applying for and building a translator is anything but free. In addition, the likelihood of mutually exclusive translator applications raises the specter of licenses being awarded by auction, ensuring that acquiring one from the FCC would hardly be “free”.

Of course, the oversupply argument is logically flawed as well. If a window is unnecessary, no one will show up with an application, and the only energy expended will be that of drafting a public notice announcing the window. In reality, however, few think that would be the result, as the FCC’s last general filing window for FM translators was back in 2003, long before AM stations were even permitted to rebroadcast on an FM translator. In other words, far from receiving preferential treatment, AM licensees have never even had an opportunity to apply for an FM translator to retransmit their stations.

All of which makes the second reason given in the Chairman’s post—avoiding an AM licensee-only filing window—even more curious. Under the current FM translator rule, Section 74.1232, applying for an FM translator license is not limited to broadcast licensees. The rule provides that “a license for an FM broadcast translator station may be issued to any qualified individual, organized group of individuals, broadcast station licensee, or local civil governmental body….” A common example of this is a community with limited radio service that applies for and builds an FM translator to rebroadcast a distant station that is otherwise difficult to receive locally, providing that community a reliable information lifeline. Indeed, the FCC is finding out on the television side that many of the TV translators that might be repacked out of existence are owned by local communities rather than licensees.

So the FCC would not even need to revise its eligibility rules in order to open an “FM for AM” translator window for all comers. Under the existing rule, anyone is free to apply as long as they have “a valid rebroadcast consent agreement with such a permittee or licensee to rebroadcast that station as the translator’s primary station.” In terms of being limited to serving as a translator for an AM station, that is the nature of an FCC filing window, as the FCC always specifies the type of application it will accept in any filing window announcement, and has never opened a “file for whatever service you want” window.

Thus, the record amply supports the need for an “FM for AM” translator window, and the current rules preclude any concern that a window would offer preferential treatment, as anyone who wants one can apply for one.